Insights into Editorial: Should Article 35A be scrapped?

There was a writ petition filed by an NGO “We the Citizens” challenging the validity of both Article 35A and Article 370.

It argued that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution.

Article 370 was only a ‘temporary provision’ to help bring normalcy in Jammu and Kashmir and strengthen democracy in that State.

Introduction:

Jammu and Kashmir (J&K) was an integral part of the Dominion of India, according to the Instrument of Accession which was signed by Maharaja Hari Singh on October 26, 1947 and subsequently ratified by the Constituent Assembly of J&K.

Article 35A of the Constitution is now being vigorously contested with its constitutional validity being challenged before the Supreme Court.

About Article 35A:

It is the provision incorporated in the Constitution in 1954. It gives the Jammu and Kashmir Legislature a carte blanche to decide, who are all ‘Permanent Residents’ of the State.

This confers on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships as well as public aid and welfare.

If a native woman marries a man not holding a permanent resident certificate of Jammu & Kashmir, then she would restrict from her property right.

The Instrument of Accession gave only limited rights to the Centre to interfere with the autonomy of J&K.

That is why Article 370 was introduced, to recognise the special status of J&K.

It said that the power of Parliament to make laws in J&K shall be limited to those matters in the Union List and the Concurrent List which, in consultation with the State government, are declared by the President to correspond to matters specified in the Instrument of Accession.

Critical side of Article 35A:

Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”.

The ‘classification’ created by Article 35A has to be tested on the principle of equality as it treats non-permanent residents of J&K as ‘second-class’ citizens.

Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.

Meritorious students are denied scholarships and they cannot even seek redress in any court of law.

Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.

It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.

The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).

Supporting side of Article 35A:

Himachal Pradesh and Uttarakhand and such other states also have laws which say that no outsider can buy land.

Article 370 (1) (d) empowers the President of India to extend with requisite exceptions and modifications the other provisions of the Indian Constitution to J&K as may be necessary.

The Delhi Agreement of 1952 followed Article 370. According to the Clause 2 of the agreement, the State Legislature of J&K was given power to make laws for conferring special rights and privileges on the ‘state subjects’.

Article 35A follows the Instrument of Accession and the guarantee given to the State of J&K that the State’s autonomy will not be disturbed.

Striking Article 35A down will have implications for other constitutional amendments contained in the 1954 Presidential Order.

This matter requires the active participation of all stakeholders. It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities.

Way Forward:

It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities.

Article 35A, which was incorporated about six decades ago, now requires a relook, especially given that J&K is now a well-established democratic State.

The whole project of federal nation-building requires constant negotiation between the nation-state and its components. Such efforts need to have an underpinning of at least some kind of transparent democratic process

If Article 35A is to be removed, it must be removed as an expression of the will of the people, through a political process which includes the people of Jammu and Kashmir in the discussion.

Former Prime Minister Atal Bihari Vajpayee firmly believed that the issues relating to J&K could be resolved following the principles of insaniyat (humanity),jamhooriyat (democracy) and Kashmiriyat (Kashmiri values). Hopefully, this issue will be resolved using the same principles.